Ready To Roll? Workplace Issues Around Recreational Cannabis

Labour, Employment and Human Rights Bulletin | The HR Space

August 9, 2018

With the passage of the federal Cannabis Act on June 19, 2018, recreational marijuana will become legal across Canada. The Trudeau government is ready to roll with this: the new law will take effect on October 17, 2018.

Federal Law Allows Up to Four Plants Per Household

The Cannabis Act allows Canadians over the age of 18 to buy, possess, grow, and use cannabis recreationally. The federal government will regulate production, quality assurance, and production standards.

Subject to provincial or territorial laws, the federal law would generally permit adults to engage in the following activities:

Purchase fresh or dried cannabis, cannabis oil, plants and seeds for cultivation from a regulated retailer;

Possess up to 30 grams of dried legal cannabis or equivalent in public;

Share up to 30 grams or equivalent of legal cannabis and cannabis products with others;

Cultivate up to four plants in their own residence (four plants total per household); and

Alter cannabis at home in order to prepare varying types of cannabis products (i.e. edibles) for personal use provided that no dangerous organic solvents are used in the process.

Provincial and territorial governments may, however, vary some of the limits. They have a great deal of latitude in regulating sales, distribution, location of consumption, and workplace health and safety issues. The provinces and territories may increase the minimum age, lower the possession limit and impose additional requirements on personal cultivation of marijuana.

The Regulations Across Canada

The provinces and territories have been huffing and puffing, as they try to keep up with the Trudeau Government. They have enacted laws dealing with issues such as the following:

Minimum legal age for purchase, possession and use: 19 in most places but 18 in Quebec and Alberta;

Regulated sales distribution methods: some provinces are opting for government-run stores while others have opted for regulated, private retail stores, or a combination of the two; Ontario's system seems to be in a haze;

Whether plants can be grown at home and how many - up to 4 plants per home in most places, but 0 in Manitoba and Quebec;

Where it is legal to smoke marijuana: this varies - broadly speaking, some provinces and territories will allow it where-ever tobacco is smoked; others only on private property which is not a public place, etc.;

Legal possession limits by weight (if any): 30 grams in most places, but up to 150 grams in Quebec.

Some of the provincial and territorial laws go further. Some, for example:

Prohibit the sale or distribution of cannabis to persons if they are or appear to be intoxicated;

Prohibit landlords from knowingly allowing their properties to be used for unlawful sale, cultivation or distribution of cannabis; and

Impose strict penalties on young, commercial and novice drivers who are impaired by cannabis when driving, including license suspension, monetary penalties and mandatory treatment programs

Medical Marijuana

A constitutional challenge led to the legalization of medical marijuana across Canada in 2001. Regulations under the Controlled Drugs and Substances Act ("CDSA") now govern how Canadians can get access to marijuana and its derivatives for medical purposes.

The Access to Cannabis for Medical Purposes Regulation prescribes who may possess marijuana for medical purposes; who may prescribe medical marijuana; the type of medical documentation required; the maximum amount that individuals can possess; and the authorized activities of a licensed producer of medical marijuana.

The regulations for medical marijuana are not expected to change when recreational marijuana is legalized.

Impacts and Concerns Related to Marijuana and the Workplace

Many employers are concerned about how the legalization of recreational cannabis will impact the workplace. The increasingly prevalent use of marijuana products for medical purposes is also a concern. Employers' concerns include:

Increased use of cannabis both inside and outside of the workplace;

Maintaining workplace safety (especially in safety-sensitive roles);

Impairment or intoxication detection and restrictions on testing;

Effects on productivity, absenteeism and employee performance; and

Increased accommodation needs and costs for addictions and for prescribed uses.

Given the dearth of scientifically-proven methods to reliably evaluate impairment from marijuana use, these concerns seem valid.

Most of Canada's occupational health and safety laws require that employers must take every precaution reasonable in the circumstances for the protection of worker. Managers in Canada have gone to jail and one employer was fined $750,000 (pdf) for failing to fulfill those obligations in relation to marijuana use.

So, while employees' requests to use medical marijuana may be subject to the employer's duty to accommodate disabilities, employees do not have the right to be impaired in the workplace.

For example in a recent Ontario Human Rights Tribunal case, Aitchison v. L & L Painting and Decorating Ltd., (pdf) an employee was terminated for smoking medical marijuana at work. It was prescribed for his back pain. He worked as a painter on a swing stage on the outside of a building, 37 floors above ground. The Tribunal noted that the applicant "does
not have an absolute right to smoke marijuana at work, regardless of whether it is used for medicinal purposes." The Tribunal emphasized that smoking at the workplace represented a genuine health and safety risk given the "safety sensitive" nature of the job site. Discrimination based on disability was not found.

Often, though, the issue will be about whether there is any or enough impairment to cause a reasonable concern. The lack of reliable, scientific methodology to test for impairment levels will be a problem. So too are the restrictions imposed by arbitrators and the courts (pdf) on when employers can test employees for substance use. This is a workplace problem even if consumption occurs away from the workplace. While research is now being done to develop more reliable impairment testing methods, it is doubtful employers will be well-equipped in this regard by October, 2018.

The governments are rolling ahead on this issue. But they have not equipped employers to deal with where they are taking us.